tort, Canada, employer, compensation, legislation, worker, sue, misconduct
At the inception of Canadian worker compensation legislation, an historic trade off agreement was made between employers and their workers. By virtue of this agreement, the right of workers to sue their employer in tort was removed and in return workers were to receive swift, certain, but limited, compensation payments for job-related injuries and illness, regardless of fault. With a few minor exceptions, this agreement made worker compensation the exclusive remedy available to an injured worker. It also lodged with the various provincial worker compensation boards the responsibility to adjudicate whether or not the injury or illness claimed was one covered by worker compensation legislation. For the most part this statutory bar to tort action works to the benefit of both employers and employees to preserve the integrity and efficiency of the system. However, there is one glaring exception to the fairness of the exclusive remedy provision. This exception results from the fact that worker compensation legislation may be, and appears to have been, interpreted to oust legitimate action taken by an employee against an employer, whose intentional and wilful misconduct injures the employee. It is this inequity, insofar as it shields employers from tort liability for their intentional misconduct, which is the subject of this paper.
Leigh West, "The Employer's Intentional Tort - Should it be Recognized in Canadian Jurisdictions?" (1990) 13:2 Dal LJ 594.